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BEFORE THE PATENT TRIAL AND APPEAL BOARD IN THE UNITED
`
`STATES PATENT AND TRADEMARK OFFICE
`
`Trial No.:
`
`IPR 2013-00083
`
`In re:
`
`U.S. Patent No. 6,415,280
`
`Patent Owners:
`
`PersonalWeb Technologies, LLC & Level 3 Communications
`
`Petitioner:
`
`EMC Corporation & VMware, Inc.
`
`Inventors:
`
`David A. Farber and Ronald D. Lachman
`
`For:
`
`IDENTIFYING AND REQUESTING DATA IN NETWORK USING
`IDENTIFIERS WHICH ARE BASED ON CONTENTS OF DATA
`
`>l<
`
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`
`>I<
`
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`
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`
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`
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`
`>k
`
`>l<
`
`>l<
`
`October 8, 2013
`
`PATENT OWNER’S OBJECTIONS TO DOCUMENTS/EVIDENCE
`
`PURSUANT TO 37 C.F.R. § 42.64gbgg1g
`
`Pursuant to 37 C.F.R. § 42.64(b)(l) and the Board’s Order dated September
`
`3, 2013, patent owner PersonalWeb Technologies, LLC objects to the
`
`documents/evidence identified below that were submitted by petitioner(s) on reply
`
`and/or that were prior—f1led supplemental evidence relied upon by petitioner on
`
`reply, for the following reasons:
`
`1. The statements in the Reply Declaration of Douglas W. Clark (labeled
`
`EX. 1078), at paragraphs 7 and 13, that rely upon and/or cite to the
`
`claims (columns 22-24) of Woodhill (Ex. 1005) are objected to as
`
`irrelevant, prejudicial, confusing, lacking foundation, and beyond the
`
`1
`
`2020057
`
`

`
`Patent Owner‘s Objections to Evidence/Documents
`
`IPR 20l3-00083 (US 6,415,280)
`
`scope of this IPR. The relied—upon subject matter in the claims of
`
`Woodhill is not “prior art” to the ‘79l patent and has not been shown to
`
`be “prior art” to the ‘79l patent. See e. g., Federal Rules of Evidence
`
`(FRE) 401, 402, 403, 702, 703. Woodhill was “filed” before April ll,
`
`1995 (the effective filing date of the ‘79l patent), but was not published
`
`until after April ll, 1995. Any material added to Woodhill after April
`
`ll, 1. 995 (eg, including the information in the claims of Woodhill
`
`which Dr. Clark cites to and now relies upon, such as the “name”
`
`recitations in the claims of Woodhill in connection with binary object
`
`identifier) cannot be relied upon herein and is not prior art. A copy of
`
`Woodhill’s file history was previously provided to evidence the content
`
`in Woodhill that can be relied on in this IPR under Section l02(e). (Ex.
`
`2007.)
`
`2. The statements in the Reply Declaration of Douglas W. Clark at
`
`paragraph 10 that rely upon and/or cite to Langer or Ex. 1079 are
`
`objected to as irrelevant, prejudicial, confusing, lacking foundation, and
`
`beyond the scope of this IPR. See e.g., Federal Rules of Evidence (FRE)
`
`401, 402, 403. This IPR was instituted based on Woodhill. This IPR
`
`was not instituted in any respect on Langer or Ex. l079, and reliance on
`
`these exhibits is outside the scope of this IPR and impermissible for the
`
`reasons explained above. Moreover, Petitioner’s Reply may only
`
`2020057
`
`

`
`Patent Owner’s Objections to Evidence/Documents
`
`IPR 2013-00083 (US 6,415,280)
`
`respond to arguments raised in Patent Owner’s Response, and new
`
`evidence relating to Langer is improper. See e.g., Office Patent Trial
`
`Practice Guide, Vol. 77, No. 157, pg. 48767 at 1 (Aug. 14, 2012); and 37
`
`CFR § 42.23(b).
`
`3. The following statements in the Reply Declaration of Douglas W. Clark
`
`
`
`(labeled EX. 1078) are objected to as contradicting his prior testimony:
`
`paragraph 7, last sentence; page 8, line 7 to page 9, line 6; page 11, lines
`
`4-7; and page 12, line 6 to page 13, line 3. Petitioner cannot rely on a
`
`new declaration that contradicts prior deposition and/or declaration
`
`testimony. See for example the reasons discussed in the following cases.
`
`Bickerstaffv. Vassar College, 196 F.3d 435, 455 (2d Cir. N.Y. 1999);
`
`Kavowras v. N. Y. Times Co., 132 Fed. Appx. 381, 383 (2d Cir. 2005);
`
`Golden v. Merrill Lynch & Co, 2007 U.S. Dist. LEXIS 90106, at *23-24
`
`(S.D.N.Y. Dec. 6, 2007); Ramos v. Baldor Specialty Foods, Inc., 2011
`
`U.S. Dist. LEXIS 66631 (S.D.N.Y. June 16, 2011); Brown v.
`
`Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Durant v. A.C.S. State &
`
`Local Solutions, Inc, 460 F. Supp. 2d 492, 494-95, 498 (S.D.N.Y.
`
`2006); Mitchell v. Washingtonville Cent. Sch. Dist, 992 F. Supp. 395,
`
`409-10 (S.D.N.Y. 1998), ajfd, 190 F.3d 1 (2d Cir. 1999); and Bunting v.
`
`Nagy, 452 F. Supp. 2d 447, 460 (S.D.N.Y. 2006). For example and
`
`2020057
`
`

`
`Patent Owner’s Objections to Evidence/Documents
`
`IPR 2013-00083 (US 6,415,280)
`
`without limitation, see Clarl<’s prior deposition from July 2013 at pages
`
`l67-68, l72~73, 227.
`
`Respectfully submitted,
`
`NIXON & VANDERHYE P.C.
`
`By:
`
`/Joseph A. Rhoa/
`Joseph A. Rhoa
`Reg. No. 37,515
`Updeep (Mickey) S. Gill
`Reg. No. 37,334
`Counsel for Patent Owner PersonalWeb
`
`JAR:caj
`Nixon & Vanderhye, PC
`901 North Glebe Road, llth Floor
`Arlington, VA 22203—l808
`Telephone: (703) 816-4000
`Facsimile: (703) 816-4100
`
`2020057
`
`

`
`Patent Owner’s Objections to Evidence/Documents
`
`IPR 2013-00083 (US 6,415,280)
`
`CERTIFICATE OF SERVICE
`
`I hereby certify service of the foregoing Patent Owner’s Objections to
`
`Documents/Evidence Pursuant to 37 C.F.R. § 42.64(b)(l) to the following counsel
`
`for petitioner on October 8, 2013 via email (pursuant to agreement between the
`
`parties):
`
`Peter M. Dichiara
`
`WilmerHale
`
`60 State Street
`
`Boston, MA 02109
`(peter.dichiara@wi1merhale.com)
`
`By:
`
`/Joseph A. Rhoa/
`Joseph A. Rhoa
`Reg. No. 37,515
`
`2020057

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